Hammonds v. United States

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CARLTON L. HAMMONDS,

Petitioner,

v. Case No. 8:21−cv−147−TPB−TGW

Case No. 8:14-cr-406-TPB-TGW

UNITED STATES OF AMERICA,

Respondent.

____________________________________

ORDER

Carlton L. Hammonds moves under 28 U.S.C. § 2255 to vacate his

conviction and sentence for conspiring to possess cocaine with the intent to

distribute it, for which he is serving a sentence of 120 months. He challenges

his conviction and sentence on five grounds. Hammonds is entitled to no relief

because his claims are procedurally defaulted and lack merit.

I. Background

From an unknown date through August 22, 2014, Hammonds

participated in an unlawful agreement with others to possess with the intent

to distribute 500 grams or more of cocaine. [Crim. Doc. 27 at 13–14 (plea

agreement); Crim. Doc. 50 at ¶¶15–16 (presentence report); Crim. Doc. 79 at

6–10 (plea hearing transcript)] He both purchased and sold cocaine, including

selling cocaine to an undercover law enforcement detective. (Id.)

A search warrant was executed at Hammonds’s home. (Crim. Doc. 50 at

¶17) During the search of his primary bedroom, law enforcement discovered

three presses containing cocaine, numerous cellophane baggies inside a

shoebox in a closet, two digital scales in a dresser, and numerous cellophane

baggies containing cocaine residue inside a dresser drawer. (Id.) Law

enforcement also discovered a safe that contained $7,000.00 in cash, an

automatic handgun, and a brown paper bag that held baggies that contained

cocaine. (Id.) Hammonds was held accountable “for at least a total of 863.74

grams of cocaine.”1 (Crim. Doc. 50 at ¶ 18) (emphasis in original).

Hammonds was charged with conspiring to possess 500 grams or more

of cocaine with the intent to distribute it, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(B), and three counts of distributing and possessing with the intent to

distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). (Crim.

Doc. 1) An Information and Notice of Prior Convictions notified Hammonds

that he was subject to an enhanced sentence of ten years to life imprisonment

under § 841(b)(1)(B) based on two prior felony drug convictions. (Crim. Doc.

19) Those prior felony drug convictions included a 1998 Florida conviction for

possession of marijuana and 1999 federal conviction for conspiracy to possess

with the intent to distribute cocaine. (Id.)

1 Hammonds is deemed to have admitted the undisputed facts that derive from the

presentence report. See United States v. Beckles, 565 F.3d 832, 844 (11th Cir. 2009) (“Facts

contained in a [presentence report] are undisputed and deemed to have been admitted unless

a party objects to them before the sentencing court with specificity and clarity.”); United

States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“[A] failure to object to allegations of

fact in a [presentence report] admits those facts for sentencing purposes.”).

Under a plea agreement Hammonds pleaded guilty to the conspiracy

charge, and the United States agreed to dismiss the remaining charges. (Crim.

Doc. 27) The district court adjudicated Hammonds guilty of the conspiracy

charge and sentenced him to the statutory minimum term of 120 months.

(Crim. Doc. 54)

Hammonds timely appealed, but the circuit court remanded to the

district court to determine whether Hammonds intended to waive his right to

appellate counsel. United States v. Hammonds, 782 F. App’x 899 (11th Cir.

2019). On remand the district court ruled that Hammonds did not intend to

waive his right to appellate counsel and appointed the Office of the Federal

Defender to represent him on direct appeal. (Crim. Docs. 93, 98–100)

However, before the circuit court ruled on the merits of Hammonds’s appeal, it

dismissed the appeal pursuant to his motion for voluntary dismissal. (Crim.

Doc. 108)

II. Analysis

Hammonds timely moves to vacate his conviction and sentence on five

grounds. He claims that: (1) his guilty plea was unknowing and involuntary

because he pleaded guilty without having seen any evidence and because

Assistant United States Attorney James C. Preston, Jr., threatened him; (2)

his guilty plea was involuntary because law enforcement coerced him to confess

his guilt; (3) the United States failed to disclose exculpatory evidence; (4) his

sentence was improperly enhanced under 21 U.S.C. § 841(b)(1)(B); and (5)

counsel rendered ineffective assistance.

A. Procedural Default

The United States correctly argues that Hammonds procedurally

defaulted his claims in Grounds One through Four because he raised them

neither at trial nor on direct appeal. “[A] ‘procedural default’ occurs when a

defendant raises a new challenge to his conviction or sentence in a § 2255

motion.” Seabrooks v. United States, 32 F.4th 1375, 1383–84 (11th Cir. 2022)

(citing Lynn v. United States, 365 F.3d 1225, 1234 (11th Cir. 2004)). “’The

procedural-default rule is . . . a doctrine adhered to by the courts to conserve

judicial resources and to respect the law’s important interest in the finality of

judgments.’” Foster v. United States, 996 F.3d 1100, 1106 (11th Cir. 2021)

(quoting Massaro v. United States, 538 U.S. 500, 504 (2003)). “Courts have long

and consistently affirmed that a collateral challenge, such as a § 2255 motion,

may not be a surrogate for a direct appeal.” Lynn, 365 F.3d at 1232.

Hammonds neglected to argue to the district court that he had not seen

any evidence, the prosecutor threatened him, law enforcement coerced him,

the United States failed to disclose exculpatory evidence, or his sentence was

improperly enhanced. And, although he filed a notice of appeal and was

appointed appellate counsel, Hammonds voluntarily dismissed his appeal

before the circuit court issued a ruling on its merits. Therefore, Hammonds

procedurally defaulted his claims in Grounds One through Four because he

neglected to present them to the district court and voluntarily chose to forgo

his right of review on direct appeal. See Caniff v. Moore, 269 F.3d 1245, 1247

(11th Cir. 2001) (ruling that a § 2254 claim was procedurally defaulted because

the petitioner presented his claim on direct appeal but subsequently

voluntarily dismissed it); see also Johnson v. United States, No. 4:16-228, 2016

WL 4445763, at *2 (S.D. Ga. Aug. 22, 2016) (“[Defendant] appealed but

voluntarily dismissed that proceeding before the Eleventh Circuit ever

addressed his issues presented. In doing so, he effectively never appealed.”).

“If a defendant fails to raise an issue on direct appeal, he may not present

the issue in a § 2255 proceeding unless his procedural default is excused.”

Seabrooks, 32 F.4th at 1384 (citing McKay v. United States, 657 F.3d 1190,

1196 (11th Cir. 2011)). “To overcome a procedural default, a defendant must

show either (1) cause and prejudice, or (2) a miscarriage of justice, or actual

innocence.” Id.

1. Cause and Prejudice

As cause to excuse his procedural default of his claims in Grounds One

through Four, Hammonds claims that counsel was ineffective. “A petitioner

can establish cause by showing that a procedural default was caused by

constitutionally ineffective assistance of counsel under Strickland v.

Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).”

Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002). However, to excuse

his procedural default, Hammonds’s “claim[s] of ineffective assistance must

have merit.” United States v. Nyhuis, 211 F.3d 1340, 1344 (11th Cir. 2000).

He must show that “the default was caused by his attorney’s ineffective

assistance and actual prejudice resulted.” Reece v. United States, 119 F.3d

1462, 1468 (11th Cir. 1997).

“Judicial scrutiny of counsel’s performance must be highly deferential,”

and “a court must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that . . . the challenged action might

be considered sound trial strategy.” Strickland, 466 U.S. at 689 (citations

omitted). To prove deficient performance, “[a] petitioner must identify specific

acts or omissions that were not the result of reasonable professional judgment,

and a court should deem these acts or omissions deficient only if they ‘were

outside the wide range of professionally competent assistance.’” Brownlee v.

Haley, 306 F.3d 1043, 1059 (11th Cir. 2002) (quoting Strickland, 466 U.S. at

690). Because of the “strong presumption in favor of competence,” a petitioner

seeking to prove ineffective assistance of counsel “must establish that no

competent counsel would have taken the action that his counsel did take.”

Chandler v. United States, 218 F.3d 1305, 1314–15 (11th Cir. 2000) (en banc).

To overcome the procedural default, in addition to showing counsel’s

deficient performance, Hammonds must also show that he suffered actual

prejudice from counsel’s deficient performance. “’Actual prejudice means more

than just the possibility of prejudice; it requires that the error worked to the

petitioner’s actual and substantial disadvantage, infecting his entire trial with

error of constitutional dimensions.’” Granda v. United States, 990 F.3d 1272,

1288 (11th Cir. 2021) (quoting Fordham v. United States, 706 F.3d 1345, 1350

(11th Cir. 2013). “The actual prejudice standard is ‘more stringent than the

plain error standard.’” Id. (quoting Parks v. United States, 832 F.3d 1244, 1245

(11th Cir. 1987)).

a. Ground One

Hammonds claims that his plea was unknowing because he pleaded

guilty “without having seen any evidence.” (Civ. Doc. 4 at 22) Hammonds

neglects to support this vague claim with any detail about the evidence he did

not review or any explanation about how his review of that evidence would

have altered his decision to plead guilty. A petitioner is not entitled to relief

when his claim is merely “conclusory allegations unsupported by specifics or

contentions that in the face of the record are wholly incredible.” Tejada v.

Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991); Saunders v. United States, 278

F. App’x 976, 979 (11th Cir. 2008) (explaining that a defendant must allege

“reasonably specific, non-conclusory facts . . . to undermine confidence in the

outcome”).

Also, Hammonds claims that his plea was involuntary because he was

coerced into pleading guilty. He claims that, at his first appearance in federal

court, AUSA Preston threatened, “I’m going to stick it to you this time, you got

off easy last time.” (Civ. Doc. 4 at 22) He argues that counsel rendered

ineffective assistance, which excuses his procedural default of this claim, by

not reporting this threat to the district court and by not requesting an

evidentiary hearing. (Id. at 23)

First, Hammonds undermines the claim that his guilty plea was

involuntary by repeatedly requesting to be resentenced. In his motion, he

“request[s] the three levels for acceptance of responsibility.” (Civ. Doc. 4 at 23)

In his reply, he requests, “resentence me according to the amount testing

positive according to forensic lab chemists, 148.66 grams.” (Civ. Doc. 20 at 7)

Also, his claim is refuted by his sworn statements at his change-of-plea

hearing. At the hearing Hammonds acknowledged that he reads, speaks, and

understands English and that he earned a high school diploma. (Crim. Doc.

79 at 10) He confirmed that he reviewed the plea agreement with counsel and

understood it entirely. (Id. at 5, 11, and 14) He confirmed that he understood

the elements of the conspiracy offense and the applicable statutory penalties

and that he was satisfied with counsel’s representation. (Id. at 16–17)

Hammonds explicitly testified that he was not coerced to plead guilty:

THE COURT: [T]his plea agreement is the entire

agreement between you and the

government and . . . there are no other

promises, agreements, or

representations except for what’s

written down here.

So if you think someone’s promised you

something in order to get you to plead

guilty, if it isn’t written down here,

then it doesn’t count and you can’t rely

on it.

Do you understand that?

[HAMMONDS]: Yes.

THE COURT: Do you have question about that?

[HAMMONDS]: No.

THE COURT: Are you pleading guilty freely and

voluntarily?

[HAMMONDS]: Yes.

THE COURT: Has anyone forced you or coerced you

in order to get you to plead guilty?

[HAMMONDS]: No.

At the conclusion of the plea hearing the magistrate judge found that

Hammonds was pleading guilty freely, voluntarily, and knowingly with the

advice of counsel, and Hammonds never objected to this finding. (Id. at 29–30)

“A guilty plea, if induced by promises or threats which deprive it of the

character of a voluntary act, is void. A conviction based upon such a plea is

open to collateral attack.” Machibroda v. United States, 368 U.S. 487, 493

(1962). However, “the representations of the defendant, his lawyer, and the

prosecutor at [a guilty plea] hearing, as well as any findings made by the judge

accepting the plea, constitute a formidable barrier in any subsequent collateral

proceedings. Solemn declarations in open court carry a strong presumption of

verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977); see also United States v.

Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (“There is a strong presumption

that the statements made during the [plea] colloquy are true.”). “[T]he

subsequent presentation of conclusory allegations unsupported by specifics is

subject to summary dismissal, as are contentions that in the face of the record

are wholly incredible.” Blackledge, 431 U.S. at 74.

Hammonds cannot overcome his procedural default of this claim because

he neglects to allege that he informed counsel about the alleged threat. And,

even assuming counsel knew of the alleged threat, Hammonds is entitled to no

relief because, other than his conclusory assertion that the prosecutor

threatened him, he offers no evidence to disavow his affirmations under oath

that he was not coerced to plead guilty.

Furthermore, Hammonds is not entitled to an evidentiary hearing on

this claim. A § 2255 movant is entitled to an evidentiary hearing if he “alleges

facts that, if true, would entitle him to relief.” Aron v. United States, 291 F.3d

708, 715 (11th Cir. 2002) (citation omitted). “[A] petitioner need only allege—

not prove—reasonably specific, non-conclusory facts that, if true, would entitle

him to relief.” Id. at 715 n.6. “However, a district court need not hold a hearing

if the allegations are patently frivolous, based upon unsupported

generalizations, or affirmatively contradicted by the record.” Winthrop-Redin

v. United States, 767 F.3d 1210, 12156 (11th Cir. 2014) (“The district court is

entitled to discredit a defendant’s newly-minted story about being threatened

when that story is supported only by the defendant’s conclusory statements.”);

see also Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999) (explaining

that a district court need not conduct an evidentiary hearing if the record

conclusively shows petitioner is not entitled to relief). When a petitioner

“alleg[es] that [his] guilty plea was induced by threats or coercion[,] . . . the

allegations of the petitioner accompanied by his own affidavit are insufficient

to mandate an evidentiary hearing in the face of a Rule 11 record detailing

statements by the petitioner that his plea was not induced by any threats or

coercion.” Matthews v. United States, 533 F.2d 900, 902 (5th Cir. 1976).

To refute his sworn statements at the plea hearing, Hammonds offers

only his self-serving allegation that the prosecutor threatened him. Because

his claim is not supported “by credible third party affidavits or other

documentary evidence,” he is not entitled to an evidentiary hearing on this

claim. Id.; see also Martin v. United States, 949 F.3d 662, 670 (11th Cir. 2020)

(concluding that the district court did not abuse its discretion in denying relief

without an evidentiary hearing when petitioner’s ineffective assistance claims

were contradicted by his statements under oath at the plea colloquy); Reed v.

United States, 792 F. App’x 676, 677–78 (11th Cir. 2019) (same); Cedeno-

Gonzales v. United States, 757 F App’x 868, 871 (11th Cir. 2018) (same); Levy

v. United States, 665 F. App’x 820, 823–24 (11th Cir. 2016) (same).

b. Ground Two

Hammonds claims that his guilty plea was involuntary because law

enforcement coerced him to confess his guilt. (Civ. Doc. 4 at 22) According to

Hammonds, at the time of his arrest on August 22, 2014, Clearwater Police

Detective Nate Burnside asked him to become a confidential informant. (Id.)

When Hammonds—who was unrepresented—refused, Burnside threatened to

arrest his wife, take her car, and “hold her for no reason other than to make

[him] cooperate.” (Id.) Burnside warned Hammonds that AUSA Preston would

“stick it to [Hammonds].” (Id.)

A month later and with the assistance of counsel, Hammonds presented

a proffer to Burnside.2 (Id.) Hammonds contends that AUSA Preston violated

2 Hammonds was first represented by Yvette Gray of the Office of the Federal Defender, who

initiated the preparation of the proffer. (Civ. Doc. 4 at 22; Civ. Doc. 11-3 at 7–8) Next,

Hammonds retained Mark L. Mohammed, who was present when the proffer was presented

to Burnside at the Pinellas County jail. (Civ. Doc. 4 at 22; Civ. Doc. 11-3 at 2) Approximately

two weeks after retaining Mohammed, Hammonds fired him and retained Grady C. Irvin,

Jr., who represented Hammonds through sentencing. (Civ. Doc. 11-3 at 2; Civ. Doc. 11-2 at

2–7) Martin DerOvanesian of the Office of the Federal Defender represented Hammonds on

direct appeal. (Civ. Doc. 11-3 at 4–5)

that proffer by using his confession to Burnside against him. (Id.) He claims

that he was charged “with an additional estimated amount of Ghost Dope a

little over 260 grams.” (Id.) Hammonds further claims that counsel rendered

ineffective assistance, which excuses his procedural default of this claim, by

failing to report that the prosecutor “violat[ed] . . . the proffer agreement[,]”

“coerced [him] into making statements without legal representation[,]” and

“threated [him] with superseding indictments if the weight in the case was

corrected.” (Id. at 23)

Again, other than his own conclusory assertions, Hammonds offers no

evidence to disavow his affirmations under oath that he was not coerced to

plead guilty. Hammonds agreed that he was pleading guilty “freely and

voluntarily” and “without threats, force, intimidation, or coercion of any kind”

and that he was pleading guilty because he was “in fact guilty.” (Crim. Doc.

27 at 12–13) At the plea hearing he confirmed that he was pleading guilty

“freely and voluntarily,” that no one had “forced [him] or coerced [him]” to do

so, and that, except for the promises set forth in the plea agreement, no one

made any promises to obtain his plea. (Crim. Doc. 79 at 27) He is not entitled

to an evidentiary hearing on this claim because the claim is not supported “by

credible third party affidavits or other documentary evidence.” See Matthews,

533 F.2d at 902.

c. Ground Three

Hammonds claims that the United States failed to disclose the results of

forensic laboratory tests, conducted before he pleaded guilty, that contained

exculpatory evidence. (Civ. Doc. 4 at 22) According to Hammonds, those

results showed that the substance discovered by law enforcement in his safe

constituted only 148.66 grams of cocaine, while the remaining grams

discovered in the safe constituted unidentified byproduct. (Id.) Contrary to

the lab results, Hammonds argues, the presentence report erroneously states

that law enforcement discovered “a total of 408.34 grams of cocaine in and

on the safe.” (Crim. Doc. 50 at ¶ 17) (emphasis in original).

Hammonds claims the prosecution knowingly withheld this exculpatory

evidence from the district court to charge him with a conspiracy involving 500

grams of cocaine. (Civ. Doc. 4 at 22) He claims that “government documents

were falsified by [AUSA] Preston” in order “to undermin[e] the court and the

defendant.” (Civ. Doc. 4 at 22 and 25; Civ. Doc. 20 at 4) Furthermore, he

claims that counsel rendered ineffective assistance, which excuses his

procedural default of this claim, by not challenging the amount of cocaine

charged in the indictment and attributed to him in the presentence report.

In response, the United States acknowledges that “[t]he 408.34 grams of

cocaine listed in [presentence report] ¶ 17 erroneously included 287.55 grams

of unidentified byproduct.”3 (Civ. Doc. 11 at 3, n.3) Nevertheless, the United

States argues, Hammonds was not prejudiced by this error because he was

held accountable for all of the cocaine discovered in the primary bedroom,

which amounted to “at least a total of 863.74 grams of cocaine.” (Civ. Doc.

11 at 13; Crim. Doc. 50 at ¶18)

The United States correctly argues that Hammonds was not prejudiced

by the error in the presentence report. Hammonds agreed he was accountable

for the cocaine discovered in the primary bedroom, which amounted to 863.74

grams. (Civ. Doc. 11 at 13; Crim. Doc. 50 at ¶ 18) After reducing the total

amount of cocaine discovered in the primary bedroom (863.74 grams) by the

amount of unidentified byproduct discovered in the safe (287.55 grams),

Hammonds remains accountable for more than 500 grams of cocaine (576.19

grams). His base offense level remains unchanged because, under U.S.

Sentencing Guidelines § 2D1.1(c)(8) (2014), a base offense level of 24 applies

when the defendant is accountable for at least 500 grams but less than two

kilograms of cocaine.

Furthermore, Hammonds was not prejudiced the error because he

admitted to participating in a conspiracy involving 500 grams or more of

cocaine. In the plea agreement that he agreed that he “participated in an

3 The forensic laboratory report on which Hammonds bases his claim shows the weight of the

substances discovered in the safe. (Civ. Doc. 11-1)

unlawful agreement with others to possess with intent to distribute 500 grams

or more of cocaine.” (Crim. Doc. 27 at 13) At the plea hearing he again

acknowledged that he both acquired and sold no less than 500 grams of cocaine

(Crim. Doc. 79 at 7–8):

THE COURT: And this indicates that in fact

you, along with others, were

obtaining cocaine and in turn

distributing them.

Is that true?

THE DEFENDANT: Yes.

THE COURT: And was the—did you know it

was cocaine that you were

obtaining?

THE DEFENDANT: Fairly sure it was, yes.

THE COURT: Okay. And was there more than

500 grams of cocaine that was

obtained during this process?

THE DEFENDANT: I think so.

THE COURT: Okay. And, Mr. Irvin, any

dispute about that?

MR. IRVIN: No, there’s no dispute about

that.

Hammonds’s claim that the United States withheld the exculpatory lab

reports is contradicted by the record. At sentencing defense counsel notified

the district court that the substance found in the safe contained unidentified

byproduct but acknowledged that this information did not alter the fact that

Hammonds was accountable for more than 500 grams of cocaine (Crim. Doc.

82 at 4–5):

MR. IRVIN: Judge, to be factually accurate

regarding what was found in the

safe, it’s not going to change the

outcome of the weight, per se,

total, but the cocaine had not yet

been mixed with what we call

commonly as cut to bring us to

the 408 grams. That’s my

recollection.

That’s just what was in the safe.

It’s not going to change the total

amount of weight for the total of

500 grams, and I think that’s

something I have spoken with

Mr. Preston about. There was

cut and uncut. If I’m incorrect, I

think Mr. Preston can correct

me. So to be factually accurate

it was separated.

THE COURT: Mr. Preston, do you have any

objection to the recitation by Mr.

Irvin?

MR. PRESTON: There were multiple substances

contained in the safe, Your

Honor, and I didn’t bring a lab

report to give a more specific

number than what’s already in

the presentence investigation

report.

THE COURT: Okay. Is that acceptable?

MR. IRVIN: That’s acceptable.

Counsel was not ineffective for not raising a meritless challenge to the

overall amount of cocaine attributed to Hammonds. See Denson v. United

States, 804 F.3d 1339, 1342 (11th Cir. 2015) (“Failing to make a meritless

objection does not constitute deficient performance.”); United States v.

Winfield, 960 F.2d 970, 974 (11th Cir. 1992) (“[A] lawyer’s failure to preserve

a meritless issue plainly cannot prejudice a client.”).

Finally, Hammonds fails to support with any details his vague

accusation that AUSA Preston falsified government documents. He neither

identifies the allegedly falsified documents nor describes how the documents

were falsified. Such claim is “wholly incredible” and requires no further

discussion. Tejada, 941 F.2d at 1559.

d. Ground Four

Hammonds claims that the sentencing enhancement imposed under 21

U.S.C. § 841(b)(1)(B) violates the Double Jeopardy Clause because the

enhancement resulted in a duplicative punishment for his prior felony

convictions. (Civ. Doc. 4 at 22–23) He argues that his 1998 Florida conviction

for possession of marijuana was dismissed and therefore could not serve as a

proper basis for the enhancement. (Id.) He further argues that he “paid his

debt to society” for his 1999 federal conviction for conspiracy to possess with

the intent to distribute cocaine, and he is not “a Major Player who warrants

the enhancement penalty.” (Id.) He argues that counsel rendered ineffective

assistance, which excuses his procedural default of this claim, by failing to

object to the sentencing enhancement. (Id. at 23)

“The Double Jeopardy Clause provides that no person shall ‘be subject

for the same offense to be twice put in jeopardy of life or limb.’” United States

v. Gomez, 219 F. App’x 889, 891 (11th Cir. 2007) (quoting U.S. Const. amend.

V.). “The Double Jeopardy Clause protects against the imposition of multiple

punishments for the same offense.” Id. (quotations omitted).

However, “[e]nhancement statutes ‘do not change the penalty imposed

for the earlier conviction,’ but ‘penaliz[e] only the last offense committed by the

defendant.’” Id. (quoting Nichols v. United States, 511 U.S. 738, 747 (1994)).

“[S]entencing enhancements are not construed as additional punishments for

a previous offense, but only increase a sentence because of the manner of the

crime, and the enhancements are neither a new jeopardy nor an additional

penalty for the earlier crimes, but a harsher punishment for the newest crime.”

Id. (rejecting a Double Jeopardy challenge to a sentence enhanced because of

prior felony convictions).

The enhancement of Hammonds’s sentence under § 841(b)(1)(B) does not

violate the Double Jeopardy Clause because it was supported by his 1999

federal conviction for conspiracy to possess with the intent to distribute cocaine

for which he received a sentence of 59 months imprisonment. (Crim. Doc. 50

at ¶45) Counsel did not perform deficiently by not raising a meritless challenge

to the § 841(b)(1)(B) enhancement. See Denson, 804 F.3d at 1342; Winfield,

960 F.2d at 974. Therefore, Hammonds fails to show cause and prejudice to

excuse his procedural default of this claim.

2. Actual Innocence

Because Hammonds fails to show that counsel’s alleged ineffectiveness

constitutes cause and prejudice to excuse his procedural default of his claims

in Grounds One through Four, his procedural default can be excused only if he

demonstrates his actual innocence. See Bousley v. United States, 523 U.S. 614,

622–23 (1998). “’[A]ctual innocence’ means factual innocence, not mere legal

insufficiency. Id. To show actual innocence of the offense of conviction, a

movant “must show that it is more likely than not that no reasonable juror

would have found him guilty beyond a reasonable doubt” in light of the new

evidence of innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995). The

“prototypical example of ‘actual innocence’ in a colloquial sense is the case

where the government has convicted the wrong person of the crime.” Sawyer

v. Whitely, 505 U.S. 333, 349 (1992).

Hammonds does not contend that he is factually innocent of his offense

of conviction. In fact, he undermines any suggestion of innocence by repeatedly

asking to be resentenced. (Civ. Doc. 4 at 23; Civ. Doc. 20 at 7) Consequently,

Hammonds fails to show that his actual innocence excuses his procedural

default of his claims in Grounds One through Four.4

B. Merits

Hammonds’s remaining claims of ineffective assistance of counsel are set

forth in Ground Five. (Civ. Doc. 4 at 23–27; Civ. Doc. 20 at 3–4) Hammonds

claims that Irvin advised him to plead guilty in exchange for a sentence of 18

months to two years. (Id.) In his responsive affidavit, Irvin denies promising

Hammonds a shorter sentence. (Civ. Doc. 11-2 at 6–7)

The plea agreement and Hammonds’s sworn statements at the plea

hearing refute the claim that counsel promised him a shorter sentence. The

plea agreement contains no promise of a specific sentence. (Crim. Doc. 27 at

1) Rather, in the plea agreement, Hammonds agreed that he faced a

mandatory minimum term of 120 months. (Id.) At the plea hearing

Hammonds confirmed that counsel reviewed each page of the plea agreement

with him, he understood the plea agreement, and he was satisfied with

counsel’s representation. (Crim. Doc. 79 at 16–19) He confirmed he

understood that he faced a mandatory minimum term of 120 months, that the

sentencing guidelines were advisory, and that he could not withdraw his guilty

plea if his sentence was longer than expected. (Id. at 21–27) Again, he

4 In addition to being procedurally defaulted, the claims in Grounds One through Four lack

merit for the reasons set forth in sections II(A)(1)(a)–(d).

confirmed that no one had promised him anything, other than the terms of the

plea agreement, in exchange for his guilty plea. (Id.) Finally, he understood

that the district court was not a party to the plea agreement and could reject

the plea agreement, in which case he could not withdraw his guilty plea. (Id.)

Other than his own conclusory assertions that counsel promised him a

shorter sentence in exchange for his guilty plea, Hammonds presents no

argument or evidence to rebut his affirmations under oath at the plea hearing.

And, the plea agreement contains no promise of a specific sentence.

Hammonds establishes neither that counsel was deficient in promising him a

shorter sentence nor that there is a reasonable probability that, but for

counsel’s promise, he would not have pleaded guilty and would have proceeded

to trial. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Hammonds claims that Irvin promised to represent him both on appeal

and in a § 2255 proceeding. (Civ. Doc. 4 at 23–27; Civ. Doc. 20 at 3–4)

According to Hammonds, Irvin abandoned him on appeal because he could not

afford to pay an additional $15,000.00 in fees. (Id.) Irvin avers that he filed a

motion for appointment of appellate counsel on Hammonds’s behalf and never

promised to represent him in a § 2255 proceeding. (Civ. Doc. 11-2 at 6–7)

Hammonds is entitled to no relief on this claim. He was not prejudiced

by counsel’s alleged promises to represent him because he was appointed

counsel on direct appeal but voluntarily chose to dismiss his appeal. (Crim.

Docs. 93, 98–100) Furthermore, he has demonstrated no constitutional,

statutory, or rule-based right to counsel in this proceeding. See United States

v. Johnson, 842 F. App’x 402, 405 (11th Cir. 2021) (listing the sources from

which a § 2255 indigent petitioner may derive a right to counsel).

Finally, Hammonds vaguely suggests in his reply that DerOvanesian

rendered ineffective assistance of appellate counsel for not objecting to the

drug quantity attributed to him. (Civ. Doc. 20 at 6–7) He explains that

DerOvanesian advised him to dismiss his direct appeal because his claims were

better suited for a § 2255 motion. (Civ. Doc. 4 at 23)

To the extent Hammonds intends to assert a claim of ineffective

assistance of appellate counsel, such claim is not properly before the district

court because he neglected to assert it in his amended § 2255 motion. See

Prada v. United States, 692 F. App’x 572, 574 (11th Cir. 2017) (affirming the

district court’s refusal to consider a new issue raised in a reply brief). New

claims raised in a reply brief are barred even when the petitioner is proceeding

without counsel. Enriques v. United States, 416 F. App’x 849, 850 (11th Cir.

2011) (“Although pro se pleadings are construed more liberally than those filed

by counsel, . . . issues not argued by a pro se litigant in his initial brief are

deemed waived.”). And, even if properly raised, the claim lacks merit.

DerOvanesian was not ineffective for not raising a meritless challenge to the

drug quantity attributed to Hammonds. See Chandler, 240 F.3d at 917

(“[A]ppellate counsel was not ineffective for failing to raise a nonmeritorious

issue.”).

III. Conclusion

Hammonds’s amended motion under § 2255 to vacate, set aside, or

correct his sentence (Civ. Doc. 4) is DENIED. The clerk is directed to enter a

judgment against Hammonds, close this case, and enter a copy of this order in

the criminal case.

CERTIFICATE OF APPEALABILITY

AND LEAVE TO APPEAL IN FORMA PAUPERIS

Hammonds is not entitled to a certificate of appealability (“COA”). A

prisoner moving under § 2255 has no absolute entitlement to appeal a district

court’s denial of his motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district

court must first issue a COA. Section 2253(c)(2) permits issuing a COA “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” To merit a certificate of appealability, Hammonds must show that

reasonable jurists would find debatable both (1) the merits of the underlying

claims and (2) the procedural issues he seeks to raise. See 28 U.S.C.

§ 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan,

279 F.3d 926, 935 (11th Cir 2001). Because he fails to show that reasonable

jurists would debate either the merits of the claims or the procedural issues,

Hammonds is entitled to neither a certificate of appealability nor an appeal in

forma pauperis.

A certificate of appealability is DENIED. Leave to appeal in forma

pauperis is DENIED. Hammonds must obtain permission from the circuit

court to appeal in forma pauperis.

DONE and ORDERED in Chambers in Tampa, Florida, this 9th day

of June 23.

‘TOMBARBER——it«w™

U.S. DISTRICT JUDGE

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